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Court of Criminal Appeal 4 October 2017

Sivaraja v R; Sivathas v R

[2017] NSWCCA 236

Assault & violence
CRIME CONVICTION APPEAL S 33(1)(A) CRIMES ACT 1900 DEFENCE TO JURY GROUP ATTACK NO EVIDENCE FROM ANY OF FIVE ACCUSED

Citation: Sivaraja v R; Sivathas v R [2017] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 4 October 2017
Judges: Meagher JA; R A Hulme and Beech-Jones JJ

Background

Five men were tried in the District Court arising from a series of violent incidents in Pendle Hill on the night of 19 to 20 April 2013. The central allegation was that all five accused attacked the principal complainant (referred to throughout as "Kathis") outside his home, using weapons including a cricket bat, a knife, and a metal pole. Kathis was a Sri Lankan refugee on a bridging visa; so were the accused.

The jury acquitted all accused on two earlier assault counts but convicted all five on Count 3: wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). Count 4, an alternative charge of using an offensive weapon with intent to commit an indictable offence whilst in company under s 33B(2), was left without a verdict. Both appellants, Sivaraja and Sivathas, were sentenced to three years' imprisonment with a two-year non-parole period.

Both men appealed their convictions on two grounds: first, that the trial judge erred in refusing to leave self-defence to the jury; and second, that the verdict was unreasonable having regard to the evidence.

  • Whether the trial judge was required to direct the jury on self-defence, given the nature of the group attack and the absence of any evidence from the accused
  • Whether the jury's verdict of guilty on the s 33(1)(a) wounding with intent charge (Count 3) was unreasonable or could not be supported by the evidence, particularly in respect of proof of the mental element (intent to cause grievous bodily harm)

Decision

Self-defence ground (Ground 1): Appeal dismissed

The Court held that the trial judge was correct to decline to leave self-defence to the jury. For self-defence to be left to the jury, there must be evidence capable of raising a reasonable possibility that the accused believed their conduct was necessary to defend themselves (s 418 of the Crimes Act). Here, no accused gave evidence. The accused were the initial aggressors throughout the night's events, they had the means to leave, and there was nothing beyond pure speculation to suggest that the complainant produced a knife at any point during the confrontation. The Court also rejected the argument that the incident should be broken into discrete components so that an earlier aggressive act by one party could generate a right of self-defence for the other. Such an approach, the Court found, was artificial when applied to a continuous violent melee.

Unreasonable verdict ground (Ground 2): Appeal allowed in part

The Court accepted that the jury's verdict on Count 3 (wounding with intent to cause grievous bodily harm) could not be sustained. The critical issue was whether the Crown had proved beyond reasonable doubt that the accused intended to cause grievous bodily harm, which under s 33(1)(a) requires more than an intention merely to wound. The evidence on this was insufficiently reliable. The complainant's account contained admitted lies, credibility problems, and the effects of significant intoxication. The wounds described were consistent with causes other than the metal pole attributed to the appellants, and the force with which any weapon was applied was not clearly established.

The Court was nonetheless satisfied that the jury had properly found, and that it was open to find, that the accused participated in a joint criminal enterprise to use an offensive weapon whilst in company with intent to assault the complainant, satisfying the elements of the s 33B(2) offence charged in Count 4. Applying the power under s 7(2) of the Criminal Appeal Act 1912 (NSW), the Court substituted verdicts of guilty on Count 4 for both appellants. The matter was remitted to the District Court for resentencing on the substituted verdicts, as no submissions on sentence for the lesser offence had been made before the Court of Criminal Appeal.

Orders Made

The following orders were made in relation to both appellants:

  • Leave to appeal against conviction granted
  • Appeal allowed
  • The verdict of guilty on Count 3 and the sentence imposed on 24 February 2017 set aside; substituted with a verdict of guilty of an offence under s 33B(2) of the Crimes Act 1900 (NSW) (using an offensive weapon with intent to commit an indictable offence, namely assault, whilst in company)
  • Proceedings listed for mention in the District Court at Parramatta on 12 October 2017

Key Takeaways

  • Self-defence is not available where there is no evidence beyond speculation to support it: a trial judge is not required to leave the defence merely because it is theoretically conceivable that a complainant produced a weapon during a confrontation initiated by the accused.
  • Where accused are the initial aggressors and had the means to leave, the Court confirmed that any reasonable possibility of a genuine belief in the necessity of defensive force is excluded on those facts.
  • Artificially dissecting a continuous violent incident into discrete components to manufacture a self-defence foundation is an approach the Court of Criminal Appeal declined to endorse.
  • A conviction for wounding with intent to cause grievous bodily harm under s 33(1)(a) requires proof of the mental element beyond reasonable doubt; where the complainant's evidence suffers from admitted lies, intoxication, and credibility difficulties, and the wounds are consistent with less severe causes, that standard may not be met.
  • The Court of Criminal Appeal substituted a verdict on the alternative s 33B(2) count, noting that this offence carries a maximum of 15 years (compared to 25 years for s 33(1)(a)) and does not attract a standard non-parole period, making resentencing by the District Court necessary.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 33(1)(a), 33B(2), 418, 419, 428C
- Criminal Appeal Act 1912 (NSW): ss 5(1)(a) and (b), 6(1), 7(2), 12(2)
- Evidence Act 1995 (NSW): s 38

Cases:
- Alhassan v R [2017] NSWCCA 73
- Braysich v The Queen [2011] HCA 14; 243 CLR 434
- Chen v R [2013] NSWCCA 116
- Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293
- Cuzman v R; Bucataru v R [2014] NSWCCA 222
- Elias v R [2006] NSWCCA 365
- Haoui v R [2008] NSWCCA 209; 188 A Crim R 331
- Hawi v R [2014] NSWCCA 83; 244 A Crim R 169
- Oblach v R [2005] NSWCCA 440; 65 NSWLR 75
- R v Katarzynski [2002] NSWSC 613
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- R v Stokes & Difford (1990) 51 A Crim R 25
- Shamoun v R [2015] NSWCCA 246
- Sharp v R [2012] NSWCCA 134
- Spies v The Queen [2000] HCA 43; 201 CLR 603
- Swan v R [2016] NSWCCA 79
- The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308
- Tonari v R [2013] NSWCCA 232; 237 A Crim R 490
- Viro v The Queen [1978] HCA 9; 141 CLR 88